The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Wednesday, August 01, 2012

Patent trial of the century...

Apple asserted in its opening statement of its
infringement case against Samsung that the Korean firm analyzed and
systematically copied one feature after another of its iPhone and iPad
devices, then brought look-alike products to market.
Apple designer Christopher Stringer, the trial's first witness, was
asked by lead Apple attorney what he thought as he witnessed competitors
bringing phones similar to the iPhone's design to market. "We'd been
ripped off. It was plain to see, particularly by Samsung. We were
offended," he said.
It was the punchline that Apple had been building toward on a day of opening statements, following Monday's jury selection
of seven men and three women in U.S. District Court in San Jose on the
opening day of the trial. The courtroom with limited seating was packed
with attorneys, journalists, and observers, as was an overflow courtroom
where sound and video were piped in.

Looks like Apple got the better of opening statements. You never want to start with the "keep an open mind" mantra. And you better have your exhibits ready in opening:

Samsung lead attorney Charles Verhoeven was soon able to issue a
rejoinder to the charges in his own 90-minute opening statement. But
before he could launch into it, he felt constrained to remind the jury
that they needed "to keep an open mind," that there was "more to the
story than what you've just heard." Unlike Verhoeven's presentations,
which frequently stopped and started again as he searched for the proper
exhibit, Apple's narrative flowed from start to finish with a rising
indignation. It moved toward what seemed an inevitable conclusion.
Verhoeven seemed to understand its potential impact on a lay jury.
Apple's lead attorney, Harold McElhinny, started out, for example, by
showing a simple graphic of six Samsung phones in a wide variety of form
factors prior to the launch of the iPhone at Macworld in January 2007.
Next to it, he showed Samsung phones being produced by 2010. They all
have the rectangular proportions and rounded corners of the iPhone form
factor.
McElhinny produced what he called a Samsung design document that
compared iPhones, feature by feature, with Samsung's Galaxy model and
noted whenever the iPhone's features were different. And the apparent
design response in each instance was to "make something like the
iPhone."
"To be blunt, Samsung has not been honest about this copying," he said.
Toward the end of his 90 minutes, McElhinny poured special effort into
depicting Samsung as, not only an unscrupulous competitor, but so
unethical that it failed to live up to its obligation to disclose
pending patents to other members of an international standards body, the
European Telecommunications Standards Institute (ETSI), as it was
required to do.

McElhinny seemed to be talking the jury's language. Not so much for the other guy:

Samsung's Verhoeven, when his turn came, disputed
the last assertion first. Samsung has made important contributions to
wireless standards and under ETSI rules, confidential, proprietary
information did not have to be disclosed during its application for a
Korean patent. "Any suggestion otherwise is without merit," he said.

That's how lawyers talk. Not jurors. I wonder what the jury will think of this:

Verhoeven didn't deny that Samsung studied and
duplicated some features of the iPhone. "Being inspired by a good
product is not copying. It's competition, people competing with each
other. There's nothing wrong with that," he said.

If I'm Samsung, I'm hammering this point:

Samsung is a key supplier to Apple. Twenty-six
percent of the iPhone is built using Samsung components, a situation
that is expected to continue, regardless of the outcome of the trial.
Under an avalanche of charges that Samsung copies rather than innovates
on its own, Verhoeven responded that Samsung employs 1,000 of its own
designers. It designs both components and its own products. It must be
able to innovate on its own, if Apple keeps buying its products for its
devices, he asserted.

The cross of the first witness didn't go much better with asking the one question too many:

Apple lavished similar care on the user interface. "We wanted to make a
device that was breathtakingly simple, something very easy to
understand, something that you just wanted to pick up and use."
"It felt like an entirely new thing," he concluded.
Under cross examination, Verhoeven asked him if he had seen the similar
Samsung designs. Stringer answered that he might have. "Did you see a
design with four soft buttons at the bottom," Verhoeven persisted.
Stringer answered that he might have, he wasn't sure.
"Did you think it was beautiful?" asked Verhoeven.
"Well," said Stringer, "it didn't stick in my mind."

3 comments:

Latest development: Samsung lawyers ok'ed press release with link to evidence that lawyers were ordered not to discuss in opening. The release included language suggesting court was not being fair in keeping some evidence from jury. I wonder what soem SDFla would do with that . . . . hmmmm

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.